Unusual Confidentiality Clause In CFO’s Retirement Agreement

Richard Cassin, writing in FCPA Blog, discusses an unusual confidentiality clause relating to the Foreign Corrupt Practices Act in a Walmart CFO’s retirement agreement. Included in the definition of confidential information is anything regarding “FCPA investigatory and compliance information and strategies.” Why would Walmart (or any company) want to limit disclosure of such information? Cassin wonders. There are three reasons, he concludes. Chief among them is the fact that in 2019, Walmart paid the DOJ and SEC $282 million to resolve FCPA offenses that came about because the company had weak anti-corruption internal controls in Brazil, China, India, and Mexico, and it paid an intermediary in Brazil for help obtaining construction permits. The resolution included a promise that neither the company nor anyone authorized to speak for it would make any public statement contradicting Walmart’s acceptance of responsibility. Breach of that promise means the DOJ can declare the non-prosecution agreement void and prosecute the company for any crime for which there’s evidence. “No wonder Walmart doesn’t want a former top executive talking publicly about FCPA matters,” Cassin concludes.